125 Responses

Mrs Skin, I don't mean to suggest Comeskey's at fault for taking Xue on as a client. I was merely pointing out that he made a choice. And I agree that someone had to defend him. So I've no issue with that.

But if Comeskey was at any stage deeply uncomfortable with anything he was asked to do, he could have found a way out.

I guess this is why I don't practise criminal law and he does.

I agree with you about the lack of understanding about lawyers' roles. Actualy, most of us don't go anywhere near the courts.

I don't necessarily believe, however, that our role is so special that we should be immune from public criticism. Sometimes a lawyer crosses the line with his/her conduct of a case. I'm not saying this is one such instance, but I have no difficulty with people asking the question.

I don't necessarily believe, however, that our role is so special that we should be immune from public criticism. Sometimes a lawyer crosses the line with his/her conduct of a case. I'm not saying this is one such instance, but I have no difficulty with people asking the question.

Excellent! To me, Comesky is morally culpable for choosing to discuss that line of defence with the media after the trial. No one's forcing him to peddle harmful gender stereotypes outside the "trial environment", although media always seem keen on conveying salacious tattle regardless of context or truth.

Self-regard seems a plausible motivator for not simply sticking with "no comment" especially when Comesky mentions a possible appeal in the interview linked above. The contrast with his reluctance to "speculate" about police conduct is revealing.

I totally agree that that wanker should not have continued those allegations outside the confines of the courtroom. If it's going to appeal, surely it makes it even more imperative that these totally unsupported assertions are not continually broadcasted to the media.

Ok, in the courtroom, trying that line in order to get "reasonable doubt" established might be justifiable, if pretty damn skanky. Outside of the courtroom, there is no such justification.

Also, Mark, secret trial is generally regarded as an epithet, for good reason. Kind of like "extraordinary rendition". If you don't like how the media handles trials - personally, I can't stand the way it generally handles science - then complain about the correct object. But if someone arrests and tries me for a crime, I want the process to be carried out in full public scrutiny, thanks.

Also for the record, I wasn't suggesting anything secret, more delayed coverage by media (suppression until case reaches verdict), and single source unedited (recorded) footage of cases as they unfold.

Photo plastered over the internet, reputation already half toasted, and the jury hasn't even been selected. I feel that's just wrong.

Mark - yeah, but the circumstances of this case are quite different to the others currently under discussion - her mother was in the house, the defendant had locked himself in a room with the victim, who before the door was locked was alive, and after the defendant came out was found dead with 216 stab wound...i'll be interested to see the rationale behind the not-guilty plea. Aspersions as to the victims character have already been cast during the depositions hearing....

Ah.. yes Mellopuffy I was waiting for someone to bring that up...bad example or.... knowing what you know, if you were selected as a juror could you be sure for your part that this man would receive a fair trial?

Your mingling of 2 very different cases is, I hope, a bit of irrelevancy on your part. Going by some of your previous posts - I dunno.

It's a great little 45, turn it over, the B side's even better than the A

Once again Islander, there really is no need to be like this

(humans cant be expected to remove what they know from their minds

Which is precisely the issue. The system does allow that certain individuals receive name and identity suppression and are therefore subject to considerable less public scrutiny. Which is not by any stretch of the word, 'fair'.

The cases aren't mentioned in the same post. In one case I question this man's chances of a fair trial in spite of excessive media exposure which may preclude the potential of many juror's selection

in the other case I question the necessity for a victim's family to have to deal with very publicly made aspersions cast on their daughter via excessive media exposure for justice to be brought.

New Zealand isn't a big place, there are not an unlimited number of potential jurors nor popular news sources. You have just abscinded yourself from the group who could potentially give this man a fair trial and I'm sure there are many others similarly partial to these reports who have already allowed opinion to manifest prior to hearing all the evidence. It's not that I question the veracity of most mainstream local media reports. My concern is that based on what you just said Islander, ascribable to information garnered independently by your fine self or broadcast to you in your home prior to this case having had its jury selected, that there is no doubt.

begging the question, in the quest for justice in NZ, who stands taller and reaches farther:

OK my main point here, and one that I'm obviously not putting forward well, is that it is almost always wrong to personalise a lawyer's actions or statements.

A lawyer's role is quite different than the general public perception of it (and that's another issue).

A lawyer's role requires different ethics than those of a 'normal person'. Sometimes those ethics can be perceived as unsavoury, but they are necessary* under our current conception of a lawyer's role. The role is a result of our adversarial system.

Sometimes the 'problem' lies with the lawyer. One debated example is where they take the letter of the law rather than the spirit of the law as a basis for their tactics - like using delay tactics to attempt to run the other party out of money in an attempt to force settlement.

From what's been said here (not having kept up with media reports), I don't see Comeskey as having stepped outside his ethical role. We don't have to like the defence he is running on behalf of his client, but to my mind the debate isn't about whether he should run it but whether the role of a lawyer, and the ethics (and so the defences) that spring from it, is right for our society.

OK, I'm cool with all of that - the lawyers job is to advise and represent their client to the absolute best of their ability. Clearly in this case, the defendant had a poor to non-existent grasp of english, and therefore clearly couldn't represent themselves. Hence one obvious reason why he needed qualified representation.

But you and Steve seem to be talking past each other.

Once the verdict was in , Comesky went out of his way to start flinging the nasty stuff.

As has been pointed out, this doesn't seem to make a lot of legal sense on the face of it. If he intends to lodge an appeal on behalf of his client, where's the benefit?

If there is no benefit, why is he doing it? Because he's an attention whore with a nasty streak?

I couldn't possibly comment, but that does seem to be one obvious conclusion, unless finer legal minds can explain an advantage to all that muck-flinging that has otherwise been overlooked?

I believe so, even though they are a threatened species. Indeed, they can be a very satisfying way of understanding the world. For the past few years, I have contributed to a second year uni course on Media Ethics, with teaching shared between Philosophy and my department (Screen & Media Studies). It is always interesting; the philosophers talk about general principles, we apply them to specific cases. I have also been trying to get the Law faculty involved in something similar, but so far without success.

Once the verdict was in , Comesky went out of his way to start flinging the nasty stuff.

As has been pointed out, this doesn't seem to make a lot of legal sense on the face of it. If he intends to lodge an appeal on behalf of his client, where's the benefit?

Indeedy. Mrs Skin has given me a bunch of reading I want to get through once my eyes recover from this morning's prodding. But in particular, that post-trial interview does not seem to me to be coverable by 'following client's instructions'. And I'd direct attention, in case people missed it, back to that link DeepRed posted on the first page of comments:

In the decision, Justice John Wild said Mr Comeskey misled the court.

"Optimistic would be a charitable description of the last of Mr Comeskey's submissions. Misleading would perhaps be a more accurate one.

"Need we mention the fundamental importance of counsel accurately stating the position, and being absolutely candid and forthright with the court?"

The Law Society seems to have had some previous issues with Comeskey's legal ethics.

But there are deeper and I think more interesting issues here than whether or not Comeskey is a good lawyer or a grandstanding attention-seeker.

Take the Gay Panic defence. There's a private member's bill to get rid of it, which has come through ProgBills, been picked up by Charles Chauval (a gay lawyer) and passed to Lianne Dalziel. If passed, a client would not be able to direct his lawyer to argue gay panic as a defence. And I can completely understand lawyers not wanting to argue it.

Like the kink defence, not only is it deeply distasteful to a lot of people, but it also doesn't work - in serious cases, it fails to either get people off, or affect their sentencing.

So, we have a precident for a law affecting what defences are admissable.

Then there's the Louise Nicholas case. The defendants' convictions were inadmissable, which I'm fine with. But the complainant's entire sexual history was fair game. How is this in any way just? If their previous behaviour isn't relevant to the incidents under question, then surely neither is hers.

I guess what I'm saying (on two hours sleep and a not very pleasant morning) is that I have some very broad issues with how sexuality is used in the legal system. The homosexual panic defence law suggests one way of getting lawyers out of that bind, by simply saying 'you cannot argue this'.

And yes, I am worried about what the defence is going to say in the Sophie Elliot murder case. If you've got nothing, go for the victim?

And yes, I am worried about what the defence is going to say in the Sophie Elliot murder case. If you've got nothing, go for the victim?

Sure, and why not? Its like defamation -- you can't defame the dead in law, and they're not going to be around to defend themselves against charges of being a morose incestuous pervert, or a Keith Carradine wannabe gone bad.

Take the Gay Panic defence.

Please. And here's what really fucks me off about that bit of legal fag-bashing. Believe it or not, I have had women make sexual advances to me, and I've the sneaking suspicion that the "I'm so repulsed by twat, that despite going back to her bedroom I just had to kill her M'Lud" defence wouldn't fly. What's up with that?

On the issue of whether saying things inside/outside court makes a difference to one's obligation to a client. Well, in brief, it doesn't. If Comeskey had been instructed to make a statement to the media reiterating the defence used at trial, he is obliged to do it. If it was unlawful, he is allowed to say no - so if he thought the statement was defamatory, he could have refused. However, (unfortunately in my opinion) an estate cannot sue for defamation of a deceased person, so his icky, unsavoury line is not defamatory.

Look, I don't know the specifics of this situation, I don't know Chris Comeskey. I do know I think the defence run was sleazy, as were a lot of the statements made about Laniet Bain in the Bain trial. But the way our legal system works is that you are not entitled to refuse lawful instructions, if you have the ability to carry them out. As others have pointed out, lawyers find all sorts of ways to say "no thanks" (conflicts, 'too busy', not enough expertise, being asked to do something unlawful), but if those excuses aren't actually true, the act of refusing instructions is in itself arguably a breach of professional ethics.

At its core, the job of a lawyer is essentially to act as the legal agent of their client. My own personal ethics are subsumed by the professional ethics of my role.

People (including in this thread) make rather lame jokes about lawyers' ethics. But the question, particularly in criminal law, always has to be asked - what if the accusations are wrong? Someone gets fired for making a racist statement - what if they didn't actually say what they're accused of. Someone is charged with murder - what if the police made a mistake? A defence lawyer's role, in both criminal and civil cases, is to interrogate the accusations being made, to ask the complainant/crown to prove that their accusations are true, and that the judge is entitled to levy the really quite heavy sanction of legal punishment against the accused.

As I said above, I don't have the stomach for criminal defence law (or even civil trial work, really, I don't like bankrupting people). But if you don't have good lawyers doing it, our system really doesn't work very well.

Believe it or not, I have had women make sexual advances to me, and I've the sneaking suspicion that the "I'm so repulsed by twat, that despite going back to her bedroom I just had to kill her M'Lud" defence wouldn't fly. What's up with that?

Craig, the amusing feminist corrolary to the gay panic defence is that if it was allowed for women who'd been hit on by men, the streets would be littered with the bodies of straight men.